United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
GLEN H. DAVIDSON, Senior District Judge.
Presently before the Court is Defendant's motion to dismiss for failure to state a claim  pursuant to Rule 12(b)(6) of the Federal Ru1es of Civil Procedure. Upon due consideration, the Court finds that the motion should be granted in part and denied in part, as follows.
A. Factual and Procedural Background
Plaintiff Reggie Little ("Plaintiff') alleges that on or about February 27, 2014 he underwent surgery during which a Smith & Nephew Self-Tapping Screw was implanted for the purpose of distally locking a 10 × 28 centimeter nail down Plaintiffs humerus; that the screw "was later identified as being fractured on May 19, 2014 (less than three months [later])"; and that "Plaintiff now suffers from serious profound and permanent physical injury and disability attributable to the implantation" of the screw that have rendered Plaintiff "unable to perform his normal, customary[, ] and daily activities." Pl.'s Compl.  ¶¶ 13-15.
On February 6, 2015, Plaintiff, a Mississippi citizen, filed this diversity products liability action against Smith & Nephew, Inc. ("Defendant"), allegedly a Delaware corporation with a principal place of business in Tennessee "engaged in the business of designing, developing, manufacturing, testing, packaging, promoting, marketing, distributing, labeling, and/or selling the Smith & Nephew Self-Tapping Screw as part of the TRIGEN Humeral Nail System." Id. ¶ 8. Plaintiff asserts the following seven claims: negligence, strict products liability-defective design, strict products liability-manufacturing defect, strict products liability-failure to warn, breach of express warranty, breach of implied warranties, and negligent misrepresentation. Plaintiff seeks actual and compensatory damages, punitive damages, pre-judgment interest, postjudgment interest, costs and expenses of litigation, reasonable attorney's fees and costs, and other relief that may be deemed appropriate.
On March 5, 2015, in lieu of filing an answer, Defendant filed the present motion to dismiss  pursuant to Rule 12(b)(6). Plaintiff filed a response. The matter is now ripe for review.
B. Federal Rule of Civil Procedure 12(b)(6) Standard
Motions to dismiss pursuant to Rule 12(b)(6) "are viewed with disfavor and are rarely granted." Kocurek v. Cuna Mut. Ins. Soc'y, 459 F.App'x 371, 373 (5th Cir. 2012) (citing Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003)). When deciding a Rule 12(b)(6) motion to dismiss, the Court is limited to the allegations set forth in the complaint and any documents attached to the complaint. Walker v. Webco Indus., Inc., 562 F.App'x 215, 216-17 (5th Cir. 2014) (per curiam) (citing Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004)).
"[A plaintiff's] complaint therefore must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face."'" Phillips v. City of Dallas, Tex., 781 F.3d 772, 775-76 (5th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim." Webb v. Morella, 522 F.App'x 238, 241 (5th Cir. 2013) (per curiam) (quoting City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 152-53 (5th Cir. 2010) (internal quotation marks omitted)). "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Id. (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (internal quotation marks omitted)). "Dismissal is appropriate when the plaintiff has not alleged enough facts to state a claim to relief that is plausible on its face' and has failed to raise a right to relief above the speculative level.'" Emesowum v. Hous. Police Dep't, 561 F.App'x 372, 372 (5th Cir. 2014) (per curiam) (quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955).
C. Analysis and Discussion
Plaintiffs claims against Defendant concern the safety of a medical device known as the Smith & Nephew Self-Tapping Screw, a part of Smith & Nephew's Trigen Humeral Nail System, that was implanted in Plaintiffs humerus during a humeral surgery. Regulation of medical devices is governed by the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended by the Medical Device Amendments of 1976, 90 Stat. 539, 21 U.S.C. § 301, which separates devices into the following three categories:
Class I devices are those that present no unreasonable risk of illness or injury and therefore require only general manufacturing controls; Class II devices are those possessing a greater potential dangerousness and thus warranting more stringent controls; Class III devices "presen[t] a potential unreasonable risk of illness or injury" and therefore incur the FDA's strictest regulation.
Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 343, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) (quoting 21 U.S.C. § 360c(a)(1)(C)(ii)(II)). The screw at issue in this case is a Class II device.
Defendant argues in its motion to dismiss that Plaintiff's seven claims all fall under the Mississippi Products Liability Act (the "MPLA") and must be dismissed for failure to allege sufficient facts in support. Plaintiff maintains that he has adequately pled all ofhis claims.
The Court now analyzes each of Plaintiffs claims in turn, noting that Plaintiffs claims for defective design, manufacturing defect, failure to warn, breach of express warranty, and breach of implied warranties are clearly within the purview of the MPLA, see Miss. Code Ann. § 11-1-63, and Plaintiffs claims for negligence and negligent misrepresentation are subsumed by his MPLA claims, as explained below.
1. Negligence Claim
First, Defendant contends that Plaintiff has failed to plead sufficient facts to state a plausible common law negligence claim because the MPLA subsumed common law negligence claims arising from defective design, manufacturing defect, and failure to warn. Defendant further contends that Plaintiffs claims fail because Plaintiff fails to offer specific allegations showing that Defendant breached its duty to Plaintiff to adequately test, inspect, package, promote, market, or distribute and that the alleged breach caused Plaintiff's injury.
Plaintiff argues in response that his common law negligence claim can coexist alongside his MPLA claims. Plaintiff further argues that he has adequately pled a plausible negligence claim. Plaintiff alleges in support of his negligence claim that Defendant "had a duty to exercise reasonable care to consumers, including [Plaintifi], in the design, development, manufacture, testing, inspection, packaging, promotion, marketing, distribution, labeling, and/or sale [of the screw] as part of the TRIGEN Humeral Nail System." Pl.'s Compl. ¶ 19. Plaintiff further alleges that Defendant "breached [its] duty of reasonable care to [Plaintiff] in that [it] negligently designed, developed, manufactured, tested, inspected, packaged, promoted, marketed, distributed, labeled, and/or sold the [screw]." Id. ¶ 20. Plaintiff avers that his "injuries and damages alleged herein were and are the direct and proximate result of the carelessness and negligence of [Defendant]" in the screw's "design, development, research, manufacture, testing, packaging, promotion, marketing, labeling, sale[, ] and/or distribution"; Defendant's representation that the screw was safe for its intended use when it was actually unsafe for its intended use; "[i]n failing to perform appropriate post-market testing of the [screw]"; and "[i]n failing to perform appropriate post-market surveillance of the [screw]." Id. ¶ 21. Plaintiff further avers that Defendant "knew or should have known that consumers such as [Plaintiff] would foreseeably suffer injury as a result of [Defendant's] failure to exercise reasonable and ordinary care." Id. ¶ 22. Finally, in this respect, Plaintiff alleges that as a result of Defendant's alleged negligence Plaintiff has "suffered severe and permanent physical injuries, including but not limited to substantial pain and suffering, significant expenses for medical care and treatment, and a loss of earning capacity." Id. ¶ 23.
The current version of the MPLA went into "force from and after July 1, 2014." See 2014 Miss. Laws WL No. 48 (H.B. 680). "[I]f a statute is to apply effective from and after passage' it is not to apply to causes of action that have accrued prior to the passage of the statute." Tie-Reace Hollingsworth ex rel. McDonald v. City of Laurel, 808 So.2d 950, 954 (Miss. 2002). "A cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested, and the theory that an injury has to happen before a tort is considered complete." Oaks v. Sellers, 953 So.2d 1077, 1081 (Miss. 2007) (internal quotation marks and citation omitted). This action was filed on February 6, 2015; alleges that a defect in the screw was discovered on May 19, 2014; and alleges that Plaintiff "now suffers from serious profound and permanent physical injury and disability attributable to the implantation of the [screw]." Pl.'s Compl.  ¶ 15 (emphasis added). Plaintiff does not allege a specific date whereby he discovered his injury, nor does he allege from what date he began to suffer his injury. At this stage in the litigation, a factual issue exists as to whether Plaintiff's alleged injury began or was discovered when the previous version of the MPLA was in effect or since the current version of the MPLA has been in effect. Therefore, the Court cannot yet determine which version of the MPLA applies to the case sub judice. The Court will thus look at the negligence claim from the perspective of both the current MPLA and previous MPLA.
The Mississippi Supreme Court recently instructed the following with respect to statutory interpretation:
This Court does not "decide what a statute should provide, but [ ] determine[s] what it does provide." Lawson v. Honeywell Int'l, Inc., 75 So.3d 1024, 1027 (Miss. 2011). "The Court's goal is to give effect to the intent of the Legislature." !d. To determine that intent, this Court looks first to the language of the statute. Id. "If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction." Id. Furthermore, words and phrases contained in a statute are to be given their common and ordinary meaning. Id. at 1028.
Palermo v. LifeLink Found., Inc., 152 So.3d 1099, 1105 (Miss. 2014). With this standard in mind, the Court turns to the two different version of the MPLA.
Under the previous version of the MPLA, a determination of whether a plaintiffs negligence claim can exist alongside his other MPLA claims requires this Court to navigate unsettled Mississippi law. The previous version of the MPLA states that it applies "in any action for damages caused by a product except for commercial damage to the product itself." See Laws 2004, 1st Ex. Sess., Ch. 1, § 3, eft September 1, 2004, amended by Laws 2014, Ch. 383 (H.B. No. 680), § 1, eff. July 1, 2014. To date, the Mississippi Supreme Court has never clearly indicated whether negligence claims are abrogated by the MPLA and as recently as 2012 declined to decide that issue. See Phillips 66 Co. v. Lofton, 94 So.3d 1051, 1063 (Miss. 2012) ("[G]iven that we have found that [the plaintiff] met his evidentiary burden under MPLA, it is unnecessary for this Court to reach the issue of whether [his] negligence claim was subsumed under MPLA...."). In interpreting Mississippi law that same year, the Fifth Circuit stated that negligence claims can be brought alongside strict liability claims, but "a party may not disguise a products liability claim as a negligence claim to avoid dismissal." Murray v. GM, L.L.c., 478 F.App'x 175, 181 (5th Cir. 2012) (per curiam) (citing McSwain v. Sunrise Med., Inc., 689 F.Supp.2d 835, 844 (S.D.Miss. 2010)). See McSwain, 689 F.Supp.2d at 846 (the plaintiffs "common law negligence claims fail because they are mere restatements of the claims brought under the MPLA, and... are not supported by sufficient evidence"); Murray v. GM, LLC , No. 3:10-CV-188 HTW-LRA, 2011 WL 3684517, at *3 (S.D.Miss. Aug. 22, 2011) ("[W]hen a plaintiffs negligence claim cannot survive apart from his MPLA claim, regardless of how the plaintiff labels the claim... the claim is governed by the MPLA."); McKee v. Bowers Window & Door Co., 64 So.3d 926, 940 (Miss. 2011) (the plaintiffs' "negligence claim fail[s] to present any new discussion or claim that does not relate back to the... products liability claim")).
With regard to specific claims, courts in Mississippi generally held that a negligence claim arising from defective design or failure to warn could not exist as a stand-alone claim because MPLA design defect claims and failure-to-warn claims necessarily required a negligence analysis. See Hill v. Forest Labs., Inc., No. 2:06-CV-244-KS-MTP, 2014 WL 2558756, at *2 (S.D.Miss. June 6, 2014) (the plaintiffs claim that defendant "negligently failed to warn of the alleged association between Lexapro and suicide "was plainly a product liability claim within the scope of the MLA"); Hankins v. Ford Motor Co., No. 3:08-cv-639, 2011 WL 6180410, at *4-5 (S.D.Miss. Dec. 13, 2011) (quoting Palmer v. Volkswagen of America, Inc., 905 So.2d 564, 599-600 (Miss. Ct. App. 2003) (internal quotation marks omitted) ("[W]hen a plaintiff claims defective design under the MPLA, a jury instruction on negligence is not necessary... because the risk-utility test [in the MPLA] requires the jury to reach a conclusion about the manufacturer's conduct[;] the test is a version of Judge Learned Hand's negligence calculus. Therefore, ... a jury performing risk-utility analysis necessarily makes a negligence determination."); McSwain, 689 F.Supp.2d at 846 ("The claim that [defendant] negligently failed to warn users of the danger of the chair without anti-tip tubes is a restatement of the failure to warn cause of action under the MPLA."); Jowers v. BOC Group, Inc., 2009 WL 995613, at *4 (S.D.Miss. Apr. 14, 2009) aff'd in part, vacated in part on other grounds, and remanded sub nom., Jowers v. Lincoln Elec. Co., 617 F.3d 346 (5th Cir. 2010) ("[T]he greater weight of the somewhat-mixed authority holds that negligence-based claims of product defect [against a manufacturer] are abrogated by the MPLA."); Lundy v. Conoco, Inc., No. 3:05-cv-477, 2006 WL 3300397, at *2 (S.D.Miss. Nov. 10, 2006) ("The Court finds that the failure to Warn/inadequate warnings claims, regardless of the fact that Plaintiffs labeled one claim products liability' and the other negligence', are both governed by the [MPLA]."); Bennett v. Madakasira, 821 So.2d 794, 804 (Miss. 2002) ("Although a plaintiff in a prescription drug liability case may alternatively rely on strict liability and negligence principles, these principles merge into one inquiry; the adequacy of the defendant's warnings."); Palmer, 905 So.2d at 600, aff'd in part, rev'd in part on other grounds, 904 So.2d 1077 (Miss. 2005) ("[L]ike a claim of design defect, a claim of inadequate warnings under the MPLA requires the jury to perform negligence analysis in assessing liability.... [Thus], the court need not present the jury with a separate negligence instruction on inadequate warnings.").
However, Mississippi case law interpreting the previous version of the MPLA is unclear as to whether a negligence claim arising from a manufacturing defect can exist as a stand-alone negligence claim. The Fifth Circuit has determined under Mississippi law that "[t]he risk-utility analysis [employed in defect design and failure-to-warn claims] applies to design defect cases, not manufacturing defect cases, " thus hinting that a negligence claim premised on manufacturing defect might exist alongside an MPLA manufacturing defect claim. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999); see also Joiner v. Genlyte Thomas Grp., L.L.C., No. 1:09-CV-00093-GHD, 2012 WL 567201, at *4 (N.D. Miss. Feb. 21, 2012) (a negligence claim arising from manufacturing defect might exist alongside a separate MPLA manufacturing defect claim). But see Deese v. Immunex Corp., No. 3:11-CV-373-DPJ-FKB, 2012 WL 463722, at *5 (S.D.Miss. Feb. 13, 2012) ("It is unclear whether Mississippi law recognizes such a negligence claim separate and apart from the MPLA claims for negligent design or failure to warn.").
From the above, it is clear that under the previous version of the MPLA, purported negligence claims that merely restate the elements of defective design or failure-to-warn claims brought under the MPLA are subsumed by the MPLA. However, it is unclear whether under the previous version of the MPLA purported negligence claims premised on manufacturing defect might exist alongside a manufacturing defect claim brought under the MPLA.
The current version of the MPLA, which was amended on March 17, 2014, provides that the MPLA governs "in any action for damages caused by a product, including, but not limited to, any action based on a theory of strict liability in tort, negligence[, ] or breach of implied warranty, except for commercial damage to the product itself[.]" See Miss. Code Ann. § 11-1-63. By its clear language, the current MPLA subsumes actions for damages caused by a product based on negligence; this would include negligence claims premised on design defect, manufacturing defect, and failure to warn. See, e.g., Scirocco v. Ford Motor Co., No. 5:13-CV-128-KS-MTP, 2015 WL 2451225, at *1 (S.D.Miss. May 21, 2015) (holding post-MPLA amendment that negligence claims arising from damages caused by an allegedly defective product are subsumed by the MPLA).
Under the current version of the MPLA, Plaintiffs allegations of negligence support an "action for damages caused by a product... based on a theory of... negligence" and do not support a claim for "commercial damage to the product itself." See Miss. Code Ann. § 11-1-63. Therefore, under the current version of the MPLA, it is clear that Plaintiffs negligence claim premised on design defect, manufacturing defect, and failure to warn are subsumed by the MPLA and cannot exist as a stand-alone negligence claim.
Under the previous version of the MPLA, Plaintiffs allegations of negligence premised on design defect and failure to warn are mere repetitions of his MPLA claims for design defect and failure to warn and must be dismissed. The only practical difference in the application of either version of the MPLA is the possibility that under the previous version of the MPLA Plaintiffs negligence ...